exv10w16






Exhibit 10.16




EQUITY APPRECIATION AGREEMENT



by and between



BOND STREET HOLDINGS LLC



and



FEDERAL DEPOSIT INSURANCE CORPORATION



Dated as of January 29, 2010



 









 





EQUITY APPRECIATION AGREEMENT




          This
EQUITY APPRECIATION AGREEMENT (this “Agreement”), dated as of January 29, 2010, is by and
between Bond Street Holdings LLC, a Delaware limited liability
company (the “Company”), and the
Federal Deposit Insurance Corporation, in its capacity as Receiver
(the “FDIC”).




RECITALS




          WHEREAS, concurrently herewith, FDIC and Premier American Bank, National Association, a wholly
owned subsidiary of the Company (the “Buyer”) is entering into that certain Purchase and Assumption
Agreement, dated as of the date hereof (as amended from time to time in accordance with its terms,
the “P&A Agreement”) pursuant to which Buyer shall purchase and assume certain assets, deposits and
certain other liabilities of Florida Community Bank, Immokalee, Florida (the “Old Bank”) from FDIC,
as Receiver; and




          WHEREAS, pursuant to the bid of the Company and the Buyer to acquire the Old Bank, FDIC is
entitled to receive an equity appreciation payment as provided in, and subject to the terms and
conditions of, this Agreement.




          NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby agree as follows:




     1. Definitions. As used in this Agreement, the following terms shall have the meanings
indicated:



          “Agreement” shall have the meaning set forth in the preamble.




          “Applicable
Value” shall mean, in respect of each Company Interest:




          (i) if a Public Float Event occurs, the Company’s five (5) day volume weighted average price
per Company Interest as of the date of the Exercise Notice;




          (ii) if a Sale Event occurs, the value of the consideration received per Company Interest
upon the closing of such Sale Event.




          “Business
Day” means any day that is not a Saturday or Sunday or a legal holiday on which
banks are authorized or required by law to be closed in New York, New York.




          “Buyer” shall have the meaning set forth in the Recitals.




          “Closing
Date” shall mean the tenth Business Day following delivery of the Exercise Notice in
accordance with Section 3(e).




          “Company
Interest(s)” shall mean the limited liability company interests of the Company, or in
the event the Company converts from a limited liability company to a “C”











 









 







corporation or other entity, the number of shares of common stock or other equity into which each
such limited liability company interest(s) shall have been converted.




          “EAI
Payment” shall have the meaning set forth in Section 2(a).




          “EAI
Right” shall have the meaning set forth in Section 2(a).




          “Exercise
Notice” shall have the meaning set forth in Section 3(e).




          “Exercise
Period” shall have the meaning set forth in Section 3(c).




          “Expiration
Date” shall have the meaning set forth in Section 3(d).




          “FDIC” shall have the meaning set forth in the preamble.




          “Initial
Public Offering” shall mean the first underwritten public offering of common stock of
the Company after which it will both (i) trade on a national securities exchange (which includes,
but is not limited to, NYSE, NASDAQ and NYSE Amex Equities) and (ii) have a post-offering public
float in excess of One Hundred Million Dollars ($100,000,000).




          “Maximum
EAI Payment” shall be Four Million Five Hundred and Fifty Thousand Dollars
($4,550,000).




          “Minimum
EAI Payment” shall be One Million Three Hundred Thousand Dollars ($1,300,000).




          “Public
Float Event” shall mean an Initial Public Offering.




          “Sale
Event” shall mean a transaction or a related combination of transactions resulting in a
disposition of all or substantially all of the Company’s assets where the aggregate sale price
exceeds the aggregate amount of all the capital invested by the Company’s equity holders. If the
consideration to be received in a Sale Event is not cash or marketable securities, the value of
such consideration shall be determined, in good faith, by the managing board of the Company.




          “Transfer” shall mean any transfer, sale, exchange, assignment, pledge, or hypothecation of,
creation of a lien or other encumbrance or security interest in or upon, or other disposition of,
the EAI Right; provided, that such a Transfer may only be made with respect to all (and not part)
of the EAI Right, and the term “Transferred” shall have the meaning correlative to the foregoing.




          “Trigger
Event” shall have the meaning set forth in Section 3(a).




          “Trigger
Notice” shall have the meaning set forth in Section 3(b).








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     2. EAI
Right.



          (a) Upon the occurrence of a Trigger Event (as defined below), FDIC will have the one time
right (the “EAI Right”) to receive a payment in
cash (the “EAI Payment”), equal to the Applicable
Value of sixty-five thousand (65,000) Company Interests;
provided that, in no event shall the
aggregate amount of such Applicable Value for all such 65,000 Company Interests be less than the
Minimum EAI Payment or greater than the Maximum EAI Payment.




          (b) Adjustments
for Stock Splits, etc. The number of Company Interests to which the EAI Right
relates shall be appropriately adjusted, as determined by the managing board of the Company, to
reflect fully the effect of any stock split, reverse stock split, stock dividend (including any
dividend or distribution of securities convertible into Company Interests), reclassification,
reorganization, recapitalization or similar transaction occurring after the date hereof and prior
to the Expiration Date; provided that, notwithstanding the foregoing, in no event shall the
aggregate amount of the Applicable Value for all Company Interests be less than the Minimum EAI
Payment or greater than the Maximum EAI Payment.




     3. Exercise
of EAI Right.



          (a) Conditions
to Exercise. The EAI Right shall become exercisable, in whole but not in part,
only upon the earlier of the consummation of (i) a Public Float Event, or (ii) the closing of a
Sale Event (any such event in clause (i) or (ii), a
“Trigger Event”).




          (b) Exercise
Notice. Within five (5) Business Days of the consummation of a Trigger Event, the
Company shall send FDIC a written notice stating that a Trigger Event
has occurred (a “Trigger
Notice”). Such Trigger Notice shall be delivered either in person or by overnight courier.




          (c) Exercise
Period. The EAI Right may be exercised at any time during the period (the
“Exercise Period”) commencing at 9:00 A.M., New York City time on the date of the Trigger Notice
(and if such date is not a Business Day, then the next Business Day) and ending at 

5:00 P.M., New
York City time, on the sixtieth calendar day (and if such sixtieth calendar day is not a Business
Day, then the next Business Day) following the date of the Trigger Notice.




          (d) Expiration
Date. Unless earlier exercised as provided herein, the EAI Right shall expire
upon the earlier of (i) the end of the Exercise Period and (ii) 5:00 P.M., New York City time, on
the tenth anniversary of the date of this Agreement (any such date,
the “Expiration Date”).




          (e) Manner
of Exercise. In order to exercise the EAI Right, FDIC shall deliver to the Company
a written notice in the form of Exhibit A hereto (the
“Exercise Notice”), at any time on or after
the date on which the EAI Right becomes exercisable as provided in Section 3(c). If an Exercise
Notice is properly given, FDIC shall be entitled to receive the EAI Payment on the Closing Date.




     4. Conversion
to C Corporation. FDIC understands and agrees that the Company intends to
convert from a limited liability company to a “C” corporation and further understands and agrees
that appropriate modifications to the EAI Right shall be made, without the consent of



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FDIC, to conform the EAI Right in connection with such conversion; provided that such conversion
will not affect FDIC’s right to receive cash as provided herein.




     5. Transfers
Prior to Exercise Period. FDIC may Transfer its right, title and interest in and
to the EAI Right without the consent of the Company (provided that FDIC shall notify the Company in
writing prior to the any such Transfer) at any time prior to the earlier of (i) the date on which
the EAI Right becomes exercisable pursuant to Section 2 hereof or (ii) the Expiration Date, so long
as such Transfer does not violate any applicable law, rule or regulation.



     6. Binding
Effect. This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective heirs, personal representatives, legatees,
successors and permitted assigns.



     7. No
Impairment. The Company will not, by amendment of its operating agreement or through any
consolidation, merger, reorganization, transfer of assets, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Agreement, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of FDIC against impairment.



     8. Notices. Any notice, demand or request which may be permitted, required or desired to be
given in connection with herewith shall be given in writing and directed to the parties hereto as
follows:



          if to FDIC, to:



Manager, Special Programs

Division of Resolutions and Receiverships 
Federal
Deposit Insurance Corporation 
550 17th Street, NW
(Room F-7028) 
Washington, D.C. 20429-0002


Attention: Philip Mangano 
E-mail Address:
PMangano@fdic.gov




          with a copy to: Senior Counsel



FDIC Legal Division

Federal Deposit Insurance Corporation

Special Issues Unit

3501 Fairfax Drive (Room E-7056)

Arlington, Virginia 22226

Attention: David Gearin




E-mail
Address: DGearin@fdic.gov




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          if to the Company, to:



Bond Street Holdings LLC

9010 Strada Stell Ct, Suite 105

Naples, Florida 34109

Attn: Stuart Oran




          with a copy to:



Kramer Levin Naftalis & Frankel LLP

1177 Avenue of the Americas

New York, New York 10036

Attn: James Grayer, Esq.



Notices shall be deemed properly delivered and received when delivered to both the primary notice
party and copied parties (i) if personally delivered, upon receipt or refusal to accept delivery,
(ii) if sent by a commercial overnight courier for delivery on the next business day, on the first
business day after deposit with such courier service (or the third business day if sent to an
address not in the United States), or (iii) if sent by registered or certified mail, five (5) days
after deposit thereof in the U.S. mail. Any party may change its address for delivery of notices by
properly notifying the others pursuant to this Section 8. For the avoidance of doubt, email notices
shall not be deemed proper delivery for purposes of this Agreement.




     9. Amendment. This Agreement may be modified or amended only by an instrument in writing, duly
executed by the Company on the one hand, and the FDIC, on the other hand.



     10. Governing
Law. This Agreement shall be governed by and construed in accordance with the
federal law of the United States if and to the extent such law is applicable, and, insofar as there
may be no applicable federal law, shall be governed in accordance with the laws of the State of New
York. Each of the Company and FDIC agrees (a) to submit to the exclusive jurisdiction and venue of
the federal courts located in the State of New York for any civil action, suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby, and (b) that
notice may be served upon the Company and FDIC at the addresses in Section 8 above. To the extent
permitted by applicable law, each of the Company and FDIC hereby unconditionally waives trial by
jury in any civil legal action or proceeding relating to this Agreement or the transactions
contemplated hereby.



     11. Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be invalid or unenforceable, such provision shall not affect the other provisions,
but such invalid or unenforceable provision shall be deemed modified to the extent necessary to
render it valid or enforceable, preserving to the fullest extent permissible the intent of the
parties set forth herein.



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     12. Headings;
Units. The headings in this Agreement are inserted for convenience only and
shall not constitute a part hereof.



     13. Counterparts;
Facsimile. For the convenience of the parties, any number of counterparts
hereof may be executed, each such executed counterpart shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument. Facsimile transmission or other
electronic transmission of any signed original counterpart and/or retransmission of any signed
facsimile transmission or other electronic transmission shall be deemed the same as the delivery of
an original.



     14. Entire
Agreement. This Agreement and the P&A Agreement (including the exhibits and
schedules of each of the foregoing) contain the entire understanding of the parties hereto with
respect to the subject matter hereof.



[Remainder of page intentionally left blank]











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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.



	 	 	 	 	 
	 	BOND STREET HOLDINGS LLC

 	 
	 	By:  	/s/ Daniel M. Healy
 	 
	 	 	Name:  	Daniel M. Healy 	 
	 	 	Title:  	President and Chief Executive Officer 	 
	 
	 	FEDERAL DEPOSIT INSURANCE CORPORATION

 	 
	 	By:  	/s/ Herbert Held	 
	 	 	Name:  	Herbert Held	 
	 	 	Title:  	Associate Director	 
	 



[Signature Page to Equity Appreciation Agreement]











 









 








Exhibit A




FORM OF EXERCISE NOTICE



To: Bond Street Holdings LLC (the “Company”):





     The undersigned hereby gives notice pursuant to Section 3(e) of that certain Equity
Appreciation Agreement by and between the Company and the undersigned of its election to exercise
its EAI Right, in whole but not in part, such exercise to be consummated on the tenth business day
following delivery of this notice, all in accordance with the terms and provisions of the Equity
Appreciation Agreement.



	 	 	 	 	 
	 	 	 
	 	By:  	 
	 
	 	 	Name:  	 	 
	 	 	Title: